GERONIMO

 Interim Decision #2077




                           MATTER OF GERONIMO
                       In Deportation Proceedings
                                A-18924288
                    Decided by Board March 5, 1971

 (1) Determination as to the institution of deportation proceedings against a
   deportable alien lies within the province of the District Director. Where
   deportation proceedings have been instituted, it is not within the province
   of the special inquiry officer, nor the Board of Immigration Appeals on
   appeal, to review such action but to determine whether deportability is established by evidence which is clear, convincing and unequivocal.
 (2) Allegations of misconduct against Service personnel and respondent's
   former attorney made on appeal in deportation proceedings and based on
   matters outside the administrative record, should not be casually asserted
   but should be specified and stated under oath.
CHARGE:
  Order : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Nonimmigrant visitor—remained longer than permitted.


   This is an untimely appeal from a decision of a special inquiry
officer, finding the respondent deportable on the above-stated
charge and granting her the privilege of voluntary departure. We
shall consider the case on certification under 8 CFR 3.1 (d).
  Respondent is a 24-year-old unmarried female, native and citizen of the Philippines, who was admitted to the United States as
a nonimmigrant visitor for pleasure on October 4, 1969 and has
remained longer than permitted. At a deportation hearing on
January 22, 1971, at which she was represented by counsel, she
admitted the factual allegations of the order to show cause and
conceded deportability. On the same day, the special inquiry
officer granted her the privilege of departing voluntarily on or before February 22, 1971. Respondent thereafter retained present
counsel, whose notice of appeal in her behalf, though dated January 29, 1971, was not filed until February 5, 1971.
  In his notice of appeal and supporting brief, present counsel
seeks reversal on the basis of factual allegations outside the ad-

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  ministrative record. In substance, the brief asserts that respondent obtained her visitor's visa through travel agents in the
  Philippines who, without her knowledge, had falsified her visa
  application and passport; that following entry, on April 1, 1970
  respondent filed a third preference visa petition, which has been
  approved by the District Director; that respondnet, on interview
  by Service investigators, gave a detailed statement as to her visitor's visa; that the District Director, contrary to his usual policy,_
  declined to permit respondent to remain in the United States
  until a quota number became available, but instead instituted
  these deportation proceedings against her. The brief asserts that
  respondent's former counsel failed at the deportation hearing to
  raise a defense based on the allegedly improper actions of the
  District Director and the Service investigator.
     The assertion that the District Director abused his discretion
  in refusing to permit the respondent to remain in the United
  States after approval of her visa petition presents no defense cognizable in these deportation proceedings. It is within the District
  Director's prosecutive discretion whether to institute deportation
  proceedings against a deportable alien or temporarily to withhold
  such proceedings. Where such proceedings have been begun, it is
  not the province of the special inquiry officer (or of this Board on
  appeal) to review the wisdom of the District Director's action in
  starting the proceedings, but to determine whether the deportation charge is sustained by the requisite evidence. Our review of
 this record satisfies us that deportability has been established by
 evidence which is clear, convincing and unequivocal. The allegations which present counsel now makes with respect to the District Director raise no proper defense to the deportation charge.
 Respondent's former attorney was not remiss in not attempting
 to put forward such an untenable defense.
    The second point asserted in the notice of appeal is that the respondent's failure to develop at the hearing the facts of her victimization by the Philippine travel agents deprived her of the opportunity to leave voluntarily. Since the special inquiry officer did
 in fact grant respondent the privilege of voluntary departure, we
'fail to see how she has been prejudiced by the failure of her former attorney to burden the record with the irrelevant details of
 her alleged deception by her travel agents.
    The third ground for appeal in the notice of appeal is stated
 thus: "Immigration Service through their threats and misleading
 statements to induce alien and her former counsel to present no
 real defense to the charges in the hearing." This statement is not

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merely ungrammatical. If untrue, it is irresponsible. Grave
charges such as these, made against Service personnel and respondent's former attorney, and obviously based on matters outside the administrative record, should not be casually asserted in
an unsworn allegation if they are seriously urged. The facts
should be specified and stated under oath, subject to the penalties
of perjury. If not seriously urged, such charges should not be asserted at all.
    We do not know what, if anything, happened outside the administrative record now before us. Our careful review of that rec-
)rd satisfies us that the special inquiry officer conducted a fair
tearing, properly found the respondent deportable as charged,
Ind accorded her the privilege of voluntary departure, the only
 orm of discretionary relief from deportation for which respondnt is eligible. If present counsel feels that additional voluntary
 'eparture time is needed, he has an adequate remedy in an appliation to the District Director under 8 CFR 244.2. In support of
 hat application he may present such proofs as he may deem apropriate, including the evidence of respondent's alleged good
  iith in obtaining the visa, etc.
    ORDER: The decison of the special inquiry officer is affirmed.
    It is further ordered that, pursuant to the special inquiry
  ficer's order, the respondent be permitted to depart from the
   nited States voluntarily within 31 days from the date of this
 . der or any extension beyond that time as may be granted by
   e District Director; and that, in the event of failure so to de-
   .rt, the respondent shall be deported as provided in the special
   4uiry officer's order.




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